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Otto v. American Mut. Ins. Co.

Supreme Court of Pennsylvania
Oct 27, 1978
393 A.2d 450 (Pa. 1978)

Summary

In Otto v. American Mutual Insurance Company, 482 Pa. 202, 393 A.2d 450 (1978), our Supreme Court reversed a decision of this Court at 241 Pa. Super. 423, 361 A.2d 815 (1976), by allowing the appellants to amend their cause of action in trespass to avoid a demurrer.

Summary of this case from McKinney v. State Farm Mut. Auto. Ins. Co.

Opinion

Argued April 20, 1978.

Decided October 27, 1978.

Appeal from The Court of Common Pleas, Philadelphia County, No. 5046 February Term, 1975, Curtis C. Carson, Jr., J.

Richard A. Weisbord, Philadelphia, for appellants.

LaBrum Doak, Daniel J. Ryan, Kean K. McDonald, James M. Marsh, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.



OPINION OF THE COURT


Joseph P. Otto and Stella P. Otto, plaintiffs below, have appealed from an order of the Superior Court, 241 Pa. Super. 423, 361 A.2d 815 (1976), affirming an order of the Court of Common Pleas of Philadelphia County. The court of common pleas had sustained a preliminary objection in the nature of a demurrer filed by American Mutual Insurance Company, the respondent herein, and had dismissed the complaint. The order did not grant petitioners leave to amend their complaint.

We agree with the Superior Court's holding that petitioners' complaint as drawn failed to state a cause of action. The problem which remains is whether the sustaining of the preliminary objection should put the petitioners completely out of court.

The appellants argue here, as they did before the Superior Court, that their complaint was curable by amendment notwithstanding that the statute of limitations had expired, but that the trial court had deprived them of the opportunity to cure the defects in the complaint by dismissing it outright. This, the appellants contend, was an abuse of discretion, leaving them no option other than to appeal from the order dismissing their complaint.

An order sustaining preliminary objections in the nature of a demurrer and dismissing the complaint is a final order and, therefore, appealable. J. A. W. A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 350 A.2d 858 (1976); Catanese v. Scirica, 437 Pa. 519, 263 A.2d 372 (1970); Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954).

There may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile. We think, however, that the Superior Court erred in concluding that this was such a case. The right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully. Pa.R.C.P. 1033; Bata v. Central Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972), cert. den. 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689, rehearing den. 410 U.S. 960, 93 S.Ct. 1417, 35 L.Ed.2d 695 (1973); Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971); Quaker City Chocolate Confectionery Co. v. Delhi-Warnock Bldg. Assn., 357 Pa. 307, 53 A.2d 597 (1947); Garnack v. McNally, 315 Pa. 30, 172 A. 102 (1934). Cf. Robinson v. Tool-O-Matic, Inc., 216 Pa. Super. 258, 261, 263 A.2d 914, 916, alloc. refused, 216 Pa. Super. 1 (1970). See also Adler v. Helsel, 344 Pa. 386, 25 A.2d 714 (1942).

Behrend v. Yellow Cab Co., 441 Pa. 105, 271 A.2d 241 (1970). See also, Geary v. United States Steel Corp., 456 Pa. 171, 180 n. 11, 319 A.2d 174, 178 n. 11 (1974); Nationwide Mutual Insurance Co. v. Barbera, 443 Pa. 93, 277 A.2d 821 (1971).

Accordingly, for the reasons indicated, the order of the Superior Court is vacated and the matter is remanded to the court of common pleas for further proceedings consistent with this opinion.


Summaries of

Otto v. American Mut. Ins. Co.

Supreme Court of Pennsylvania
Oct 27, 1978
393 A.2d 450 (Pa. 1978)

In Otto v. American Mutual Insurance Company, 482 Pa. 202, 393 A.2d 450 (1978), our Supreme Court reversed a decision of this Court at 241 Pa. Super. 423, 361 A.2d 815 (1976), by allowing the appellants to amend their cause of action in trespass to avoid a demurrer.

Summary of this case from McKinney v. State Farm Mut. Auto. Ins. Co.

In Otto, the supreme court permitted amendment of a complaint where it was argued that there was no opportunity to cure defects in the complaint, because the lower court dismissed the complaint outright when it sustained the preliminary objections.

Summary of this case from Leonard v. Harris Corp.

In Otto v. American Mutual Insurance Company, 482 Pa. 202, 205, 393 A.2d 450, 451 (1978), the Supreme Court of Pennsylvania stated that "[t]he right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully.

Summary of this case from Chapman v. City of Philadelphia

In Otto v. American Mut. Ins. Co., 482 Pa. 202, 393 A.2d 450 (1978), our Supreme Court has held that where a complaint fails to state a cause of action, it is usually error to dismiss the complaint without leave to amend.

Summary of this case from Mellon Bank, N.A. v. Joseph
Case details for

Otto v. American Mut. Ins. Co.

Case Details

Full title:Joseph P. OTTO and Stella P. Otto, his wife, Appellants, v. AMERICAN…

Court:Supreme Court of Pennsylvania

Date published: Oct 27, 1978

Citations

393 A.2d 450 (Pa. 1978)
393 A.2d 450

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